Delhi High Court
Sarla Mishra vs Pm Mathrani (Decd.) Through L.Rs & ... on 4 January, 2012
Author: Pradeep Nandrajog
$~6-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF DECISION: JANUARY 04, 2012
+ FAO(OS) 227/2011
SARLA MISHRA ..... Appellant
Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs.
Versus
PM MATHRANI DECD THR LRS & ANR ..... Respondents
Through Mr.Mohinder Rupal and Ms.Shawana Bari, Advs. for
resp. no. 1
Mr.Anil Airi, Adv. for
respondent nos. 2-7
AND
FAO(OS) 228/2011
SARLA MISHRA ..... Appellant
Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs.
versus
PM MATHRANI DECD THR LRS & ANR ..... Respondents
Through Mr.Mohinder Rupal and Ms.Shawana Bari, Advs. for
resp. no. 1
Mr.Anil Airi, Adv. for
respondent nos. 2-7
AND
FAO(OS) 229/2011
SARLA MISHRA ..... Appellant
Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs.
versus
PM MATHRANI DECD THR LRS & ANR ..... Respondents
Through Mr.Mohinder Rupal and Ms.Shawana Bari, Advs. for
resp. no. 1
Mr.Anil Airi, Adv. for
respondent nos. 2-7
AND
FAO(OS) 230/2011
SARLA MISHRA ..... Appellant
Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs.
versus
PM MATHRANI DECD THR LRS & ANR ..... Respondents
Through Mr.Mohinder Rupal and Ms.Shawana Bari, Advs. for
resp. no. 1
Mr.Anil Airi, Adv. for
respondent nos. 2-7
AND
FAO(OS) 231/2011
SARLA MISHRA ..... Appellant
Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs.
versus
PM MATHRANI DECD THR LRS & ANR ..... Respondents
Through Mr.Mohinder Rupal and Ms.Shawana Bari, Advs. for
resp. no. 1
Mr.Anil Airi, Adv. for
respondent nos. 2-7
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (ORAL)
%
1. Heard learned counsel for the parties. Five suits seeking decree of specific performance of five agreements to sell executed by Late Shri P.M.Mathrani were pending adjudication on the original side of this court when the appellant filed an application under Order 1 Rule 10 of the Code of Civil Procedure seeking impleadment.
2. It not being in dispute that Late Shri P.M.Mathrani had 5/24th share in property bearing Municipal No.9, Kautalya Marg, Diplomatic Enclave, New Delhi and under the five agreements to sell, he had agreed to sell his 1/5th share to each of the sellers, appellant sought impleadment alleging that she was the sister of Late Shri P.M.Mathrani and that the property bearing Municipal No.9, Kautalya Marg, Diplomatic Enclave, New Delhi was not partitioned. She questioned the authority of her brother to sell a specified identifiable 5/24th share in the property to a stranger and pleaded that being a co-owner she was vitally interested in the result of the litigation as possession would be affected.
3. The application(s) filed by the appellant was vehemently opposed by the plaintiffs of the five suits as also the defendant(s).
4. Vide order dated 16th March, 2005, impleadment was allowed, holding that the appellant had an interest in the litigation. While deciding the application, it was observed that as per the appellant, the property had not been partitioned by meets and bounds but the brothers and sisters were occupying different portions as a matter of convenience to enjoy the property. It was noted that as per the appellant, a collusive preliminary decree for partition had been obtained which was not taken to its logical conclusion. It was observed in the order that the issue pertaining to partition by meets and bounds required adjudication.
5. Noting Section 44 of the Transfer of Property Act and Section 4 of the Partition Act, which gives rights to a co-owner of immovable property, the decision concluded by holding that the appellant was a necessary party to the suit(s) seeking specific performance.
6. The said decision dated 16th March, 2005 was challenged under five First Appeals against the order. The operation of the order dated 16th March, 2005 was stayed by the Division Bench, but the suit(s) were allowed to proceed.
7. During the pendency of the first appeals, the plaintiff(s) and the defendant entered into a settlement and in terms thereof the suit(s) was decreed vide order dated 27th October, 2005 against which RFA (OS) Nos. 150/2005, 151/2005, 152/2005, 153/2005 and 155/2005 were filed.
8. The appeals challenging the order dated 19th March, 2005 were dismissed by the Division Bench vide order dated 29th May, 2009, against which Petitions for Special Leave to Appeal filed before the Supreme Court were dismissed as withdrawn. In other words, the order dated 19th March, 2005 attained finality.
9. The flip flop movement as afore-noted required the Court to reflect back upon the order dated 27th October, 2005 which recorded the compromise and disposed of the suit.
10. It found its reflection in RFA (OS) Nos. 45/2006, 55/2006, 56/2006, 57/2006 and 99/2006 for the reason under the said appeals, the consent decree dated 27th October, 2005 disposing of the five suits was in challenge.
11. It does not need much intelligence to fathom as to what happened in the appeal(s). The appeal(s) had to be allowed, for the simple reason the consent decree was passed in the absence of a necessary party i.e. the appellant. It was so held by the Division Bench when the five Regular First Appeals were allowed vide order dated 23rd December, 2009 and the suit was restored for fresh adjudication on merits.
12. A hiatus between reality and law came into being. The conflict was that the purchaser came into possession of a portion of property bearing Municipal No.9, Kautalya Marg, Diplomatic Enclave, New Delhi.
13. The legal conflict with reality was that the possession which flew from the consent decree came under a cloud, inasmuch as the consent decree was set aside. The de facto possession of the purchaser was no longer backed by a de jure claim thereto.
14. The issue which arose before the learned Single Judge was: Whether the purchaser should be ousted from the possession of the part of the property qua which the consent decree was passed, requiring the purchaser to hand over the key to the Registrar General of this Court or whether the purchaser should be permitted to continue to occupy the portion of the property, possession whereof was obtained under the consent decree.
15. Highlighting that interim orders are normally passed requiring status quo to be maintained unless there are compelling reasons to restore the status quo ante, vide impugned order dated 22nd February, 2011, the learned Single Judge has declined the prayer made by the appellant who had filed various interim applications praying that the plaintiff(s) of the suit(s) be directed to lock the portion of the property in their possession and hand over the keys to the Registrar General of this Court.
16. The reason given by the learned Single Judge is that it is not a case where it can be said that a stranger has been put in possession of a joint property under joint occupation before partition thereof. The learned Single Judge has highlighted that though there was no formal partition of the property but parties were enjoying different portions thereof even as per the case pleaded by the appellant; as a matter of convenience.
17. Though not stated by the learned Single Judge, but we highlight that while working out the equities, balances have to be struck between the competing claims and the factual as also the legal positions have to be reconciled.
18. It cannot be disputed that the plaintiff(s) had parted with valuable consideration which has flown to the coffers of the defendant(s), who have in return, by way of consideration, handed over possession.
19. Since the respective co-owners were, under a mutual agreement, in exclusive possession of different portions of the property, we are of the opinion that in equity, the impugned order suffers from no jural infirmity.
20. The learned Single Judge has taken care to record the undertaking of the plaintiff(s) that except for residential purpose, the said property would be put to no other use and that the plaintiff(s) would neither part with possession nor create any third party interest in the suit property.
21. So holding, the learned Single Judge has held that the prayer of the appellant to direct the plaintiff(s) to deposit the key of the portion of the property cannot be allowed.
22. It would not serve any purpose if the property is kept unused; the appellant would gain nothing therefrom. It would be a case of a dog in a manger.
23. We find no infirmity in the view taken by the learned Single Judge vide impugned order dated 22nd February, 2011, and hence, we dismiss the appeal.
24. Costs easy.
PRADEEP NANDRAJOG, J
PRATIBHA RANI, J
JANUARY 04, 2012
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